Path 2

Path 2

He Who Waits

August 1, 2000

It’s been a long, strange trip for Eric Corley, a/k/a Emmanuel Goldstein, the publisher of 2600: The Hacker Quarterly and subject of Hollywood’s litigious ire. And if Corley’s trip hasn’t ended quite yet, at least the Long Island cyberjournalist will now have a breather so he can get back to work.

Last week Corley’s defense team introduced its final witness, and in doing so closed the trial portion of the court case that has been the focal point of Corley’s life since he was first sued last year for posting DeCSS, a now infamous program, on his Web site (2600.com). (DeCSS breaks the encryption system used by the film industry to keep people from making copies of their DVD movies.) And because this case has been broadly viewed as the first real test of the controversial Digital Millennium Copyright Act of 1998, it has also become the focal point for groups ranging from entertainment insiders to cyberlibertarians and the open source community, which believes that programming code, like speech, wants to be free.

As the prosecution, the eight major motion picture studios have banded together, arguing that the utility runs afoul of the DMCA’s provision prohibiting circumvention of technology used to protect copyrighted materials. For their part, Corley’s team of defense lawyers insist that DeCSS—written as part of an open source project to allow Linux computers (an open source platform rapidly gaining in popularity) to play DVDs—merely provides consumers with the kind of “fair use” rights, such as taping a CD so you can play it in your car, that Americans have historically enjoyed.

They also argue that computer code is just that: code, a language like any other, capable of expressing ideas and therefore worthy of First Amendment protection. This principle came to the fore more than once during the trial, but never more poignantly than when Corley was asked under oath if he knew whether DeCSS would work when he posted it along with an article about the cracking of the movie industry’s encryption scheme.

“The reason we posted the source code and the accompanying story is because it was already a story,” said Corley, who wore his signature black pants and shirt throught the trial and was called as a witness for the defense. “We saw [it] as a fascinating story, and we printed that story, we printed what the story was about, which was our source, our primary source. Here is what they are talking about, here is the source code.” Not to have posted the source code, Corley testified, would have been like publishing an article about a photograph without publishing the photograph itself.

Now Corley’s fate, and that of computer code as speech, rests with U.S. District Court Judge Lewis A. Kaplan. Both sides are set to file their final briefs on August 8, and Judge Kaplan will issue a ruling shortly thereafter. He left plenty of doubt about the direction of his thinking. In his closing comments, he noted that while “probably nothing much has changed” regarding his analysis of the DMCA and its stiff protection of copyright, he admitted he found arguments made by the defense’s final witness, computer scientist David Touretzky, “persuasive” and “educational.”

Touretzky provided the grand finale in his Tuesday testimony. “I work in artificial intelligence and computational neuroscience, and my theories are expressed as computer programs,” he told the court. If computer code is not afforded full protection as expression under the First, he says, “anyone who publishes a computer program is at risk.” Touretzky walked the court through his “Gallery of CSS Descramblers” (found at cs.cmu.edu/dst/DeCSS/gallery/index.html), in which DeCSS is expressed in several different ways, from English to object and source code.

The key word in all of this is expressed. If you can use any kind of code to express an idea, argue Touretzky and Goldstein, then that code is a language.

“The reason we posted the source code and the accompanying story is because it was already a story. We saw [it] as a fascinating story, and we printed that story, we printed what the story was about, which was our source, our primary source. Here is what they are talking about, here is the source code.”

If Judge Kaplan has indeed cottoned to this notion, it would mark a great victory for Corley and his defense team, which is supported by the Electronic Frontier Foundation (eff.org), a cyberliberties group. Frustrating the oddsmakers, though, the judge also noted that even if computer code, “object or source,” were considered expressive, “which way that cuts is another matter.” He pointed out that even once speech is recognized as expressive, it does not enjoy unlimited protection under the First Amendment. In other words, libeling a financial trader may be expression, but it’s also illegal conduct, as is pirating copyrighted intellectual property.

Another witness, however, made clear that piracy was never the objective behind writing DeCSS. Jon Johansen, the Norwegian teen cracker who started this mess by crafting DeCSS, finally had his day in an American court. Johansen and his father became the center of a media circus back in January when Hollywood pressured the Norwegian Economic Crime Unit to investigate the pair. The Motion Picture Association of America painted Johansen as a marauding underage pirate.

Yet in testimony marked by a remarkable simplicity, Johansen told the court that, contrary to the studios’ claims, he had written DeCSS only to allow Linux users to play the same movies available to Windows and Mac users. He also revealed that the authorities in Norway not only declined to pursue the investigation, but that the Norwegian government had awarded Johansen a prestigious scholarship for his “contribution to society.” Far from demonizing its hackers, Norway, it would seem, lionizes them.

“Nobody’s in court arguing for the right to copy movies.”

Both sides in the DVD trial have pledged to appeal a losing decision, with one member of the defense legal team noting, optimistically perhaps, that “the case could be before the Supreme Court as early as next year.” At issue will be not only the legal protection afforded the decryption program, DeCSS, but, quite possibly, the future of online media.

Though the DVD trial was roundly upstaged by news of Napster’s sudden demise and just as sudden recovery, close observers of the judicial system note that the DVD trial may set the more significant legal precedent.

The prosecution claims that DeCSS poses the threat of irreparable harm to film copyright holders, and is nothing more than a utility for piracy. A clause within the Digital Millennium Copyright Act specifically forbids the “circumvention of copyright protection schemes.” The plaintiffs, then, occupy a distinct redoubt in the actual letter of the law. On its face, the program would seem to be in clear violation of the statute.

Not so, claims the defense. “Nobody’s in court arguing for the right to copy movies,” says Wendy Seltzer, a fellow at Harvard’s Berkman Center for Internet and Society and a staunch supporter of the defense. “The defense is arguing for the right to view movies on a different platform, a platform of their choice, and the right to use an excerpt in an academic presentation, which, currently, the plaintiffs would prohibit.”

Few question whether the film studios, like the recording industry, will need to protect their copyrighted material. “These are people who’ve invested a lot of money, and they have a right to protect their revenue,” says Meg Smith, another fellow at the Berkman Center for Internet and Society. “At the same time, an idea is not a chair. We traditionally have not wanted to treat intellectual property like physical property, like a chair, in which only one person can sit at a time. Ideas are very different, and we have tended as a society to believe that ideas should not be locked up for the use of one person.”

The rub of the case, as Judge Kaplan notes, is that “the horse may already be out of the barn.” By all accounts, hundreds of thousands of copies of DeCSS are already in existence, which could make any injunction worthless. In the end, the courts may provide far less protection for the movie studios than they could provide themselves, simply by whipping up a means of protecting DVDs that isn’t vulnerable to every code-happy grade-schooler with a keyboard.